Volume 138 — Vermont Reports

<bold>1. Dismissal and Nonsuit — Generally</bold> <block_quote> A motion to dismiss which challenges the sufficiency of the complaint is akin to a demurrer in that it admits all facts well pleaded and cannot be supported by extrinsic evidence, though under rule, a motion to dismiss may be supported with extrinsic evidence by converting it into a motion for summary judgment, the element allowing the conversion being a challenge to the sufficiency of the claim supported by extra-pleading material. V.R.C.P. 12(b).</block_quote> <bold>2. Dismissal and Nonsuit — Generally</bold> <block_quote> At the time a motion to dismiss is converted into a motion for summary judgment it is incumbent upon the court to notify the parties of the changed status of the motion and give them a reasonable opportunity to submit extra-pleading material as permitted by rule. V.R.C.P. 12(b), 56(e).</block_quote> <bold>3. Judgments — Summary Judgment — Generally</bold> <block_quote> The purpose of summary judgment procedure is solely to determine whether a genuine issue of fact exists. V.R.C.P. 12(b), 56(e).</block_quote> <bold>4. Judgments — Summary Judgment — Invalid Judgment</bold> <block_quote> Where lower court, acting sua sponte in chambers hearing in action on a judgment, objected to the underlying judgment, and acting on court's remarks the defendant made oral motion to dismiss, which was granted, reversal would be granted as dismissal was premature in that it did not give plaintiffs an opportunity to show that a fact question existed as to whether the judgment was defective.</block_quote> <bold>5. Insurance — Notice of Claim — Failure To Give</bold> <block_quote> Summary judgment was properly denied insurer in action on judgment formerly obtained against its insured where it was sought on ground notice of suit against insured, a precedent to liability of insurer, was not made, and insurer's affidavit in support of motion stated notice was first received when process was received in the action against insurer, but also stated insurer had contacted insured several times about the incident sued on prior to judgment against insured.</block_quote><page_number>Page 190</page_number> <bold>6. Judgments — Summary Judgment — Affidavits</bold> <block_quote> For a statement in an affidavit to support a motion for summary judgment, it must show personal knowledge of the material fact in issue, and where insurer was sued on judgment obtained against insured and claimed summary judgment should be granted because cooperation of insured was a prerequisite, under the insurance contract, to liability of insurer, affidavit's statement that according to insurer's records insured had failed to cooperate did not support motion for summary judgment, for key issue was whether insured in fact cooperated or not, and not what the insurer's records showed on the matter, and the affidavit was thus not sufficient to show personal knowledge of the material fact in issue. V.R.C.P. 56.</block_quote>

<bold>1. Pleading — Defenses — Lack of Personal Jurisdiction</bold> <block_quote> Defendants did not have to assert defense of lack of personal jurisdiction, in 1975 action which did not initially rely on personal jurisdiction, until it became a potential issue in 1978, when plaintiff claimed personal jurisdiction, at which time measurement of time for waiver of the defense began. V.R.C.P. 12.</block_quote> <bold>2. Judgments — Default — Relief</bold> <block_quote> Where plaintiff's assertion that defense of lack of personal jurisdiction over defendants was waived by failure to timely assert it was made after the vacating of default judgment for plaintiff which had been entered because of defendants' failure to plead or otherwise defend, it would be an empty gesture to allow defendants to reopen the default only to preclude them from asserting their defenses because of it; after a default is vacated a defendant can assert any defense not explicitly precluded by a valid condition of the order permitting reopening.</block_quote> <bold>3. Courts — Jurisdiction — Jurisdiction of Person</bold> <block_quote> Ordinarily, a defendant's appearance and subsequent participation in an action in which personal jurisdiction over him cannot be obtained confers personal jurisdiction.</block_quote><page_number>Page 200</page_number> <bold>4. Courts — Jurisdiction — Jurisdiction of Person</bold> <block_quote> In Vermont suit against Florida residents, in which plaintiff attached Vermont property of defendants, letter from defendants' counsel reading "please enter my appearance for the defendants" did not give the court personal jurisdiction. V.R.C.P. 4(e).</block_quote> <bold>5. Judgments — "In Rem" Actions</bold> <block_quote> Once a plaintiff has commenced an action pursuant to rule providing that personal service outside the state has the same effect as that within except that a judgment against one whose interest in property has been attached shall affect only that interest, any judgment is limited to the value of the interest in the property attached, absent explicit consent to in personam jurisdiction by defendant, his pursuit of affirmative relief, or the discontinuance of the suit and establishment of personal jurisdiction by service of a new summons and complaint in a manner consonant with due process. V.R.C.P. 4(e).</block_quote>

<bold>1. Appeal and Error — Preservation of Questions — Failure To</bold> <bold>Present Below</bold> <block_quote> Claims regarding jury instructions must be raised in and ruled on by trial court before they are ripe for review, and where plaintiff did not object below to failure of court to give her requested instruction, supreme court review was precluded. V.R.C.P. 51(b).</block_quote> <bold>2. Trial — Instructions — Requests</bold> <block_quote> Court's failure to inform counsel of court's proposed action upon requested instruction, as required by rule, was error, but did not require reversal where failure was apparently due to inadvertence on part of judge and the party was not prejudiced because after charge had been given and before the case went to the jury there was a bench conference at which the party could have and did not object to failure to give the requested instruction. V.R.C.P. 51(b).</block_quote> <bold>3. Trial — Instructions — Requests</bold> <block_quote> Trial court's failure to inform counsel, as required by rule, of court's proposed disposition of requested instruction, did not relieve counsel of obligation to object to failure to give the instruction. V.R.C.P. 51(b).</block_quote> <bold>4. Trial — Instructions — Requests</bold> <block_quote> Failure to give plaintiff's requested last clear chance instruction was not error where instruction was an incorrect statement of the doctrine and the facts of the case showed the doctrine to be inapplicable.</block_quote> <bold>5. Negligence — Last Clear Chance — Elements</bold> <block_quote> Where a perilous situation was created by the negligence of both plaintiff and defendant and neither had the ability to avert a resulting accident by exercising then available means, last clear chance doctrine should not be charged.</block_quote> <bold>6. Jury — Deliberations — Length</bold> <block_quote> There is no compelling reason why there should be a different rule for civil cases than for criminal cases regarding length of time a jury spends reaching a verdict.</block_quote> <bold>7. Jury — Deliberations — Length</bold> <block_quote> Verdict reached after one to two hours of deliberation the day before Thanksgiving, in trial lasting eight days, was not ill-considered<page_number>Page 518</page_number> and would not be overturned where the issues were straight-forward, nothing indicated jury performed its duty other than with complete sobriety and respect for its legal obligation, and there was no reason to suppose jury failed to carefully examine the evidence.</block_quote>

<bold>1. Contracts — Construction — Ambiguity</bold> <block_quote> The provisions of a clear and unambiguous contract must be given force and effect and be taken in their plain, ordinary and popular sense.</block_quote><page_number>Page 567</page_number> <bold>2. Labor Relations — Employment Contracts — Construction</bold> <block_quote> Where, upon December 31, 1975, termination of plaintiff's employment contract, employer was to give plaintiff a new 1976 Ford LTD, employer, under contract, was to trade in a 1973 Ford (owned by employer and used by plaintiff) on the 1976 Ford LTD, which plaintiff was to use until receipt of it upon termination of the contract, plaintiff returned the 1973 Ford on termination of the contract, employer sold the 1973 Ford and failed to give plaintiff a 1976 Ford LTD, plaintiff requested a cash settlement as he wished to buy another auto, and employer indicated he would give plaintiff the difference between the price of the 1976 Ford LTD and the amount employer received from sale of the 1973 Ford, and employer refused to pay plaintiff the full value of the 1976 Ford LTD, plaintiff was entitled to the full value of the 1976 Ford LTD in his contract action.</block_quote> <bold>3. Fraud — Pleading and Proof — Specificity</bold> <block_quote> Rule requiring that allegations of fraud be stated with particularity requires only that all the elements be specifically pleaded, not that fraud be alleged by name. V.R.C.P. 9(b).</block_quote> <bold>4. Fraud — Pleading and Proof — Specificity</bold> <block_quote> Claim by purchasers of business, that certain notes endorsed by business prior to sale, certain delayed bills sent business, and certain other accounts payable by business, all known to seller of business, but not to purchasers, were not included in the books and records of the business, which purchasers relied on to their detriment, alleged the necessary elements of an action for fraud and the allegations were sufficient to give notice to plaintiff of the claims of purchasers; and it was not error to grant judgment on the claim where fraud was not alleged by name. V.R.C.P. 9(b).</block_quote> <bold>5. Fraud — Pleading and Proof — Necessity</bold> <block_quote> Fraud cannot be presumed; it must be established by the one alleging it.</block_quote> <bold>6. Fraud — Silence When Duty To Speak — Generally</bold> <block_quote> Silence alone is insufficient to constitute fraud, unless there is a duty to speak.</block_quote> <bold>7. Fraud — Silence When Duty To Speak — Fraud Found</bold> <block_quote> Evidence that contract under which business was sold stated seller made no representation or promise to buyer upon which buyer relied relating to the business of the company except as set forth in the contract and the books and records of the company, that the books and records were represented as complete by seller, that seller had reason to know, and buyer did not, of company's liability on a note and bills not set out in the books and records, and that buyer relied upon seller's representations in purchasing the company, was sufficient to show fraudulent concealment by omission of one possessing superior knowledge of facts material to the value of property which would be otherwise unavailable to a purchaser in the exercise of due<page_number>Page 568</page_number> diligence, and judgment against purchasers on claim alleging the above was error.</block_quote>